CXWW and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

The Deputy President of the Administrative Appeals Tribunal considered the case of CXWW and the Minister for Immigration, Citizenship and Multicultural Affairs. The dispute concerned the non-revocation of a mandatory cancellation of the Applicant's Partner (Subclass 801) (Residence) visa, following the Applicant failing to pass the character test. The core issue was whether the discretion to refuse to grant the visa should be exercised, taking into account Ministerial Direction No. 90, in light of the Applicant's past conduct, including a tobacco importation offence.

The Tribunal was required to determine the appropriate weight to be given to both primary and other considerations under Ministerial Direction No. 90. Specifically, it needed to assess the Applicant's conduct in relation to the protection of the Australian community, considering the nature and seriousness of his past actions and the risk of future offending. The Tribunal also had to weigh other considerations, such as the Applicant's family ties in Australia and his children's welfare, against these primary considerations.

The Tribunal reasoned that while the Applicant's unlawful wounding offence was serious, involving the use of a weapon, and his role in two significant tobacco importations, which defrauded revenue of over $2.8 million, were also serious matters, the weight to be given to these primary considerations needed careful evaluation. The Tribunal acknowledged the Applicant's evidence regarding the unlawful wounding incident, accepting that he took a hammer from another person and struck a victim. Regarding the tobacco importations, the Tribunal noted the Applicant's pivotal role in facilitating them by establishing false identities and manipulating paperwork to divert the goods. However, the Tribunal also considered the Applicant's personal circumstances, including his children's strong ties to Australia and their desire for their family to remain together. The Tribunal referenced the principle that while primary considerations are generally given greater weight, other considerations can be afforded the greatest weight if they fall outside the circumstances that generally apply.

Ultimately, the Deputy President decided not to exercise the discretion to revoke the cancellation of the Applicant's visa. The decision under review was affirmed.